The opinion of the court was delivered by: BYERS
This cause in personam was instituted to recover damages to the sand scow H.S. No. 60, said to have been caused by the negligent manner in which her cargo of gravel was discharged at the Bayonne Terminal on December 21, 1941.
The vessel is 91 feet long by 31 feet, 6 inches in beam, and her depth is undisclosed. The uncontradicted testimony is that she was about 35 years old at the time in question; it sufficiently appers that these years had taken their toll of the craft, and since the survey discloses estimated cost of repairs to be $3,577 and the libel seeks recovery of $5,000 it is obvious that the alleged negligence, if established, could be turned into a financially satisfactory transaction.
The negligence complained of is in the manner of the discharge; that is 553 cubic yards of gravel is said to have been removed according to so irregular a plan of progress that the starboard bow and the port stern of the scow were left with their original weight of cargo, while the rest was being discharged, and that at those diagonally opposite extremities the vessel was bent down so as to twist the hull; that is, the port side aft was 15 inches, and the starboard side forward was 12 inches, below the waterline level.
It is not in dispute that such a condition did exist whom discharge had been completed on the night of the 21st or in the morning of the 22d, but there is controversy as to whether it was present when the scow arrived with her cargo.As to that, the bargee is quite clear that his hull was not out of shape in any degree, when discharge was started, while the respondents' crane operator and one witness who inspected the vessel, prior to and after the operation had been completed, testify the other way.
At best, the evidence is unsatisfactory on both sides, and while the issue of negligence is clear enough, the resolution of the doubt created by both narratives is a reluctant and labored process, and yields the view the twist did occur during the discharge, but that it was as much attributable to the weakness of the interior structure of the hull as to the pattern followed in removing the gravel; also that any departure from conventional methods was instigated by the bargee himself, who probably suspected the frailties of his senescent charge.
The H.S. No. 60 was moored with her starboard side to the unloading pier around 9 a.m. on Sunday, December 21, 1941, having been delivered on the previous day alongside two other loaded scows.
There was an inspection made on the 20th by a representative of respondents, named Uzdilla, not now so employed.
He produced his note-book (Lib.Ex.3) which indicates a careful checking of the deck at over forty places. At the foot of the sheet appears the following: "Loose X Bracing thruout. Scow skewed starboard, forward, and port side aft. Two Tie Rods rotted."
The date has been changed by erasure at the top of the sheet from 12/20/41 to 12/21/41. That could of course have been done at the time, but no such explanation (i.e., of erasure and writing over it) was offered. The quoted words could have been written immediately after the inspection was made, and the witness testified that such was the fact. If that were true, a like expression would occur in the written report made up in the office by a boy to whom the book was handed for that purpose. The written report dated December 21, 1941 (Resp.Ex.B) is assumed to contain the same figures as to checking as the pages from the book, and at the foot, the following:
"All X bracing throughout loose and slapping, two tie rods rotted through and broken loose; inside of scow very slimey bottom, sides as well as all bracing and timber. Entered at the stern end which had 14 inches of water in the bottom. Outside was worm eaten quite extensively, and a lot of short pieces in her side.
"Jules Uzdilla, Surveyor".
Since no original entry forms the basis of this footnote, the latter must have been explained or dictated when the note-book was delivered, at which time the skew or twist was not referred to. This variation between the two records justifies the inference that the words first quoted from the note-book were added after the report had been written in the office. On the other hand, the report itself is accepted as to the observations made concerning the loose bracing and the broken tie rods.
Further light is cast upon the subject by Uzdilla's testimony that he inspected the scow when light, he says on the 22d, because he knew the receiving department had asked the scow's captain to sign a release when discharge had been completed, and ...